Right2Know concerned about Defence Amendment Bill

The Right2Know Campaign has expressed concern over some of the clauses of the Defence Amendment Bill, which it says is moving backwards to re-introduce apartheid-era clauses.

Last week the organisation made a submission to the NCOP Select Committee on Security and Justice. “It is common cause that transparency is the best cure for corruption – and indeed to build or rebuild public confidence,” Right2Know said. “Right2Know therefore makes this submission to ensure that the amended defence legislation includes provisions for transparency and public accountability – cornerstones of our constitutional democratic order.”

Its submission focussed on aspects of the Bill that limit access to information, freedom of expression and discourage acts of whistleblowing. These include clauses 15 and 16 (proposed new section 83A and 104).

The overview of the Bill explains that the ‘new’ clause 15 prohibitions are a re-introduction of the apartheid-era 1957 Defence Act provisions, removed from the current Defence Act of 2002. According to section 83A “The Minister may prescribe measures to regulate access to any military camp, barracks, dockyard, installation, premises, areas or property, or to any airbase or any land or area of water which is used either temporarily or permanently by the Defence Force or which is under the control of the Defence Force, including a building, premises or area or any part thereof which is also being used or is occupied by, or is the property of any other person.

“Any person who fails to comply with any prohibition, restriction or condition prescribed under subsection (1) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years.”

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Right2Know said this clause provides for extremely broad prohibition on access to military property and or large areas around such property, with excessive, indiscriminate penalties. “This chilling effect of this is concerning. The effect of the prohibition may mean grievous human rights abuses will be not be observable, humanitarian aid possibly stopped or limited, and critical accountability media reporting would be silenced.”

Right2Know said the Bill’s criminal sanctions may, for example, see community members being prosecuted for unintentional and harmless access to military property or areas. This is applicable in the Marievale eviction case. Had this prohibition been in force, residents posing no substantial threat to the state would have been liable for hefty fines and up to 15 years in jail.

Section 83A [Clause 15 (3)] extends the prohibitions to include “any land or premises on or in which armaments are developed, manufactured, serviced, repaired or maintained, must be regarded as land or premises used by, or under the control of, the Defence Force.’’

Right2Know said this prohibition likely includes state owned arms company Denel, which has found itself highly exposed to state capture. “A blanket prohibition with chilling criminal sanctions as envisaged by this clause is frankly unsuitable given the vulnerability of this SOE. Greater public oversight and accountability is urgently required.”

“Right2Know is deeply concerned that almost 25 years into our constitutional democracy, the defence sector, which should be moving towards being a more transparent institution, is moving backwards to re-introduce apartheid era clauses. Our strong recommendation is that this entire section should be scrapped.”

However, in the event that the Committee chooses to retain these provisions, Right2Know urges members to amendment certain clauses. It recommends that access to military property or areas with the purpose of exposing criminality, corruption or imminent public danger should not be subject to criminal sanction.

Right2Know takes issue with the penalty and offence clauses in Clause 16 of the Defence Amendment Bill which it says overlook worrying criminal sanctions in Section 104 of the Defence Act of 2002 (which deals with penalties).

“There are sweeping criminal penalties of up to five years for the disclosure and publication in the media of all classified information in terms of the Act. Section 19(a) ramps up the penalty for accessing, possession, reproduction and disclosure of classified information from “classified facilities, installations or instruments” including “digital data” up to 25 years in prison.

“The constitutional right to protest and strike are unduly criminalised, despite our apex court ruling that the defence department is not exempt from adhering to constitutional principles,” Right2Know said, adding that the Act provides no explicit protection for whistleblowers.

One of the problematic sections of the act states that “any person who obstructs, damages, removes, destroys or commits any other act on or against any property used for protecting or safeguarding the Republic, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 25 years.”

Another problematic section highlighted by Right2Know states that “subject to the Promotion of Access to Information Act, 2000 (Act 2 of 2000), any person who, without authority, discloses or publishes any information, or is responsible for such disclosure or publication, whether by print, the electronic media, verbally or by gesture, where such information has been classified in terms of this Act, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.”

Other sections of the Act state that any member of the Defence Force who participates in any strike or secondary strike action, is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years.

“It would be prudent and in the public interest for this Committee use this opportune moment to introduce minor additional amendments to remedy some of the more serious defects of s104, which may infringe on the constitutionality of the Act,” Right2Know said.